Legislation passed state House last week

INDIANA — A bill
that would allow schools to punish students for off-campus activities could see
Indiana students suspended or even expelled for off-campus speech.

Rep. Eric Koch, R-Bedford, said House Bill 1169 is an
attempt to deal with growing issues like cyberbullying and cheating. The bill
passed through the Indiana House of Representatives on Jan. 30 and is sitting
in a Senate committee.

Under existing Indiana law, students may be punished for
“unlawful activity” if the activity is reasonably deemed to cause “interference
with school purposes or educational function.” It does not matter if the
activity occurred on or off school grounds or if it happened when school is not
in session.

Koch’s bill would remove the word “unlawful” and allow
punishment of any off-campus activity that interferes with the school.

Ken Falk, legal director at the American Civil Liberties
Union of Indiana, said he has concerns with the bill.

“From a First Amendment perspective,” Falk said, “if the
student engages in lawful activity off of school grounds, there’s a very high
standard that has to be applied before that can somehow lead to discipline.”

Asked if his bill could potentially infringe First Amendment
rights, Koch referred to Kowalski v.
Berkeley County Schools, a federal appeals court decision from July. The
opinion in Kowalski allowed a school
to punish “disruptive” off-campus speech.

Kowalski was a 4th
U.S. Circuit Court of Appeals decision, and is therefore binding only in West
Virginia, Virginia, North Carolina and South Carolina.

Falk said he has concerns over the need for a cheating and
cyberbullying law at all. He said cheating should indeed be punished, but not
through state law. As for cyberbullying, he said it should only be punished in
cases where there is an imminent threat of violence.

If a student is a member of a gay rights group off campus,
Falk said as an example, that student potentially could be punished if other
students “take umbrage” with it.

“Clearly that cannot be deemed to be a disruption that
interferes with school purposes,” Falk said, “when everything that student has
done is off school grounds.”

Koch insisted that limiting student speech is not the intent
of the bill.

Frank LoMonte, executive director of the Student Press Law
Center, said other states could soon see similar bills replicated in their
legislatures.

“This could be like a bad cold that gets passed from state
to state,” he said.

LoMonte said even if the Kowalski
case applied in Indiana, the bill would “lower the bar” to any and all
off-campus speech — which could result in schools using it for “image control.”
He said the Kowalski court found that
cyberbullying can be punished without additional state law.

Despite the concerns posed with his bill, Koch was confident
that the Senate wouldn’t pass it without working out all the kinks.

“If any concern arises,” Koch said, “there’s still
sufficient opportunity to address it before the bill would become law.”